Title Examination
Update Curing Title with Affidavits PART II
1. Interested Person - Defect of Substance
inadmissible hearsay. The declaration which was attributed to L. C. Adams, his claim that he was a son of Joseph Adams, deceased, was not admissible under the exception to the hearsay rule which in proper circumstances permits the introduction of hearsay to prove pedigree. The applicable rule is thus expressed in Texas Law of Evidence (McCormick & Ray) Sec. 601, p. 762: ‘Bias or prejudice would be fatal to the trustworthiness of the declaration. To guard against it the courts have established the rule that the declarant must have been disinterested, i. e. had no interest or motive to deceive, at the time when the declaration was made. Under this rule declarations as to the declarant’s heirship or relationship to a certain person, made after descent cast upon him as to property belonging to such person are not admissible in behalf of the declarant or persons claiming that property under him.’ The declaration by Adams was made after descent had been cast as to the property of Joseph Adams, deceased, and at a time when he himself was endeavoring to sell or was in process of selling his asserted interest in the land in controversy; it was a self-serving declaration, was hearsay in the form in which it was introduced in evidence, and was inadmissible. Byers v. Wallace, 87 Tex. 503, 28 S.W. 1056, 29 S.W. 760; Jamison v. Dooley, 98 Tex. 206, 82 S.W. 780; Wolf v. Wilhelm, Tex.Civ.App., 146 S.W. 216, error refused. Fenley v. Ogletree, 277 S.W.2d 135, 144 (Tex.Civ.App. —Beaumont 1955) (emphasis added) Dismissal of suit Many corroborating affidavits are often flawed as well in that they only deliver conclusory statements (See 3. in Part I of Curing Title with Affidavits published in Second Quarter 2021 issue). That is, the affidavit issued by the corroborating affiant usually states that the affiant personally
The first instruction the author received from his mentors in writing title opinions and requesting curative documents was to never, never allow a family member or interested party give the affidavit in the absence of a corroborating affidavit by a disinterested third party. The why had a two part answer. First, and foremost, in the absence of a corroborating affidavit, the family member/ affiant, especially in heirship/family history affidavits, is probably an interested party. As such, the affidavit, and its contents, may very well be inadmissible in later cases where the heirship or family history is an issue. Second, family members tend to see “heirship” in a less than legal fashion. For example, in one case, the family member only listed three children in the heirship affidavit as being the intestate heirs-at-law of the deceased fee simple mineral owner of the drillsite tract. Of course, after the well was drilled and completed making two million cubic feet a day, the fourth “child” came forth. When confronted, the affiant stated that he just knew his mother would not have wanted his sibling to have any interest in the “old homestead”. Thus, no mention was made in the affidavit of an undivided one-fourth un-leased interest under the drillsite tract. Ultimately, the issue becomes whether the affiant is an interested party in the subject matter of the affidavit. If so, a self serving affidavit is inadmissible on a trial of the matter for which it was issued under the hearsay rule. Fenley v. Ogletree, 277 S.W.2d 135, 144 (Tex.Civ. App. —Beaumont 1955) (emphasis added) Dismissal of suit In this state of the record, we think the appellants’ contention that the evidence at least showed Fenley and Faulkner to be joint owners with the plaintiffs of the land in controversy is without merit. The testimony given by the defendant Fenley was
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G r o w t h T h r o u g h E d u c a t i o n - J u l y / A u g u s t / S e p t e m b e r 2 0 2 1
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